Social media targeting: consent or legitimate interests?

April 2021

Social media marketing is well established and mainstream – lots of organisations carry out targeted advertising via various social media platforms.

But are we being open and upfront about it? Do our customers, or supporters, know enough about how you use their data on social media platforms?

From retargeting your own customers by uploading pseudonymised data to a social media platform, through to targeting ‘lookalikes’, there are a variety of options available.

Are there any compliance risks when we conduct these activities? Do people have enough control over the use of their data and the advertising they see? And to what degree are people even bothered by it?

What does the ICO think?

We began to get an insight into the ICO’s expectations when they published their draft Direct Marketing Code, back in January 2020.

Firstly, yes they are in scope:

Online behavioural advertising and some types of social media marketing are not classed as electronic mail under PECR but these are still direct marketing communications.

The ICO points out the need for transparency:

Individuals may not understand how non-traditional direct marketing technologies work. Therefore it is particularly important that you are clear and transparent about what you intend to do with their personal data.

Individuals are unlikely to understand how you target them with marketing on social media so you must be upfront about targeting individuals in this way.

You must be transparent and clearly inform individuals about this processing so that they fully understand you will use their personal data in this way. For example, that you will use their email addresses to match them on social media for the purposes of showing them direct marketing.

When using “list-based” tools (e.g. Facebook Custom Audiences or LinkedIn contact targeting), where you upload personal data you already have to the platform (e.g. list of email addresses) you must be transparent and clearly inform people about this processing.

The draft DM Code says:

You must be upfront about this processing. Individuals are unlikely to expect that this processing takes place, therefore you should not bury information about any list-based tools you use on social media within your privacy information.

It is likely that consent is the appropriate lawful basis for this processing as it is difficult to see how it would meet the three-part test of the legitimate interests basis. However you will still need to ensure you also meet transparency requirements.

If an individual has objected to you using their personal data for direct marketing purposes, you cannot use their data to target them on social media, including by using list-based tools.

So, the ICO says we need consent.

But actually many disagree with this rather draconian interpretation of the law. Remember this is still draft guidance and we don’t know if it will change or when the Code will be published.

(When finalised, as a Code of Practice it will replace and carry more weight than the existing Direct Marketing Guidance, which doesn’t really touch on social media marketing).

So, is Legitimate Interests out of the question?

Many organisations may be currently relying on Legitimate Interests, especially when using “list based tools”. It’s not been made clear why the ICO believes these tools would not meet the three-part test for Legitimate Interests.

In contrast, the European Data Protection Board (EDBP) suggest in their August 2020 social media guidelines that Legitimate Interests might be suitable for social media targeting:

Generally speaking, there are two legal bases which could theoretically justify the processing that supports the targeting of social media users: data subject’s consent (Article 6(1)(a) GDPR) or legitimate interests (Article 6(1)(f) GDPR). A controller must always consider what the appropriate legal basis is under the given circumstances.

The EDPB goes on to explain the 3 conditions for a Legitimate Interests must be met:

(i) the pursuit of a legitimate interest by the data controller or by the third party or parties to whom the data are disclosed
[i.e. the processing must be for a legitimate purpose]

(ii) the need to process personal data for the purposes of the legitimate interests pursued, and
[i.e. the processing must be necessary]

(iii) the condition that the fundamental rights and freedoms of the data subject whose data require protection do not take precedence.

The EDPB reminds us that, in cases where a controller envisages to rely on legitimate interest, the duties of transparency and the right to object require careful consideration in relation to (iii) above.

Therefore it is important to make sure your privacy notice is clear about the use of personal data for social media targeting.

The EDPB also reminds us that CJEU have previously specified that, in a situation of joint controllership (as there might be with a controller and a social media platform):

It is necessary that each of those controllers should pursue a legitimate interest […] through those processing operations in order for those operations to be justified in respect of each of them.

Why would you want to be a trail blazer and limit the scale of your marketing activity by adopting a consent-based approach, when others don’t do it too?

John Mitchison is Director of Policy and Compliance at the Data and Marketing Association (DMA);

“The current compliance landscape can be very confusing for marketers, not least in the area of online advertising and social media.  We have a ‘draft’ version of the ICO’s Direct Marketing Code of Practice and guidance from the EU, of which the UK is no longer a part.

If a person has a first party relationship with a brand and a first party relationship with a social media platform it seems entirely reasonable for that person to see ads about the brand on the social site, and for this processing to be done under Legitimate Interest. 

Transparency and control are essential if you want to retain the trust with your customers; clearly explain what is going on in your privacy policy and allow people to opt out if they really want to.”

Consumer expectations

It can be argued people nowadays expect to see relevant advertising when they browse social media and that ads which are relevant to their interests have got to be better then untargeted ads.

So is there really any harm in this type of targeted advertising?

It’s important to acknowledge there could be harm if data is used in intrusive, appropriate or unlawful ways, especially were individuals may be minors or vulnerable people.

When data is used without the proper controls to protect people, such as offering dieting tablets to anorexics, targeting alcohol offers to alcoholics, or offering gambling services to problem gamblers – it is highly likely to be harmful.

This type of advertising is also regulated under the CAP code, so we’re not entirely reliant on data protection rules here.

But outside of these concerning situations, where targeted advertising is used for non-sensitive products and services, is this type of targeting likely to cause harm?

What user-controls are available within social media platforms?

Most social media platforms which carry advertising provide user controls on the advertising you are exposed to. For example, Facebook Ad Preferences enable users to:

  • see which advertisers are targeting you directly and hide ads if you wish
  • manage advertising topics and ‘see fewer’ if you wish
  • view data about your activity from ad partners
  • decide if you wish to share certain profile information (employer, job title, education & relationship status) for advertising purposes
  • edit you’re your interests and other categories used by advertisers to reach you
  • find out whose targeting you via audience-based advertising and hide those ads if you want

What are the risks to advertisers?

At this point in time, it seems the likelihood of enforcement action by the ICO regarding social media targeting (for non-sensitive products & services) appears rather low. But of course this could change.

It’s certainly wise to keep a close eye out for customer / supporter complaints which might arise from social media targeting, as if these are not handled properly, people could escalate their concerns to the ICO.

At the end of the day the key is making sure you are open and upfront about how you use people’s personal information.  Take a risk-based judgement call on the right lawful basis for your business and try to avoid any unwelcome surprises!


If you’d like any advice or support regarding social media marketing, or any other use of data, please get in touch – Contact Us